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Discrimination and Language

I read a recent Ontario Human Rights tribunal case in which the Tribunal dismissed a complaint by a worker who had alleged discrimination when she was fired during the training process because her French was poor.  It’s called Taylor v. Oraclepoll Research.

It’s a very short decision because the employee pleaded the wrong prohibited ground.  She checked ‘disability’ on the form, and not speaking a language proficiently is not a disability within the meaning of the Code.  So the Tribunal simply ruled there was no discrimination on the basis of disability, and no other prohibited ground was named in the complaint.  So you lose.

Does this mean it is fine for an employer to dismiss or refuse to hire someone who does not speak a certain language to a level desired by the employer?

The answer is no, not always.  What the Tribunal could perhaps have done is look beyond the fact that the worker checked the wrong box on the form  and ask if there was discrimination contrary to the Code. ‘Language’ is not a prohibited ground in Ontario, but ethnic origin, place of origin, and ancestry are, and a person’s language skills are often tied to those grounds pretty directly.  So a requirement to speak French will often discriminate indirectly against people from ‘places’ where French is not spoken, or from ethnic origins where no one speaks French.  Is it discrimination on the basis of place of origin for a company to refuse employment to an Anglophone from Toronto or some other location where a language other than French is dominant?  I couldn’t find a case, but I’d think that would be a pretty strong argument.  What do you think?  The Human Rights Commission seems to suggest as much in their paper on language discrimination.

If a language requirement does indirectly discriminate, then the Code prohibits an employer from asking about it in a job application form.  The employer may ask about language skills in an interview if language is a ‘genuine and reasonable’ requirement for working in a ‘special service organization’ as identified in section 24(1)(a), or language proficiency is a bona fide occupational requirement and there it is not possible to accommodate the worker to enable them to perform the job (within the meaning of the section 11 ‘constructive dismissal’ provisions).

The key point is that the burden would usually shift to the employer to justify the language proficiency requirement once the worker had established that the requirement indirectly discriminates against them due to their ‘place or origin’, ethnicity, or ancestry.  That exploration never occurred in the Taylor case because the worker didn’t have the knowledge to plead one of these other grounds of discrimination rather than disability.

Note that in the Taylor case, the Tribunal directed the worker to places where she may get assistance in learning how to select a proper ground to plead.  She may go learn she should plead a different ground and refile the complaint.

Do you think the Tribunal should help unrepresented workers by assisting them in identifying the proper ground of discrimination to plead?  If the goal is to address discrimination in employment, do you think the Tribunal could have just saved this step and considered whether the employer’s requirement violated one of the other grounds the employee could have pleaded?

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5 Responses to Discrimination and Language

  1. Kenneth Mills Reply

    December 2, 2009 at 4:47 pm

    Hi,

    I think there is sufficient evidence to show that language discrimination is occurring on a daily basis across Ontario. I think the veil that the employers are hiding behind needs to be taken away and solidified. This veil is the language act and the key sections state that an employee has the right to work in their own language provided that they are not at management level and provided that the other language isn’t absolutely necessary to get the job done (open to interpretation: Does this mean a fire fighter has to be bilingual but a mail room clerk doesn’t? Or does the mail room clerk have to be bilingual because their position is considered “essential?”) I find the interpretation of the Languages Act to be very confusing. I have been denied permanent positions because I only speak english and yet hte positions themselves are not inherently critical to public safety, or potential losses to the employer. I’m usually applying for administrative positions where my employer would be my client and photocopying and faxing would be the work. Does this make any sense that the position be bilingual if the Act doesn’t state clearly if this is necessary or not? The whole public service is creating jobs that discriminate based on language. I would argue that the Public Service of Canada should be creating positions based on the winning outcome of the position being applied for. If the person happens to speak french then let the positions language choice be french. If the person happens to be english then let the position be categorized as an english position.

    I find the literature published by lawyers in California to be very elegant in this area. I feel as though I’ve been discriminated against my entire life because I don’t speak french. I am one of the unlucky folks who have problems with second languages. Especially if I don’t use them.

    Why should I be denied a position that a monkey can do because of language?

    It makes no sense to me. I have a degree in Political Science. Shouldn’t my education and my work ethic with work history be enough?

  2. Andrew Reply

    October 13, 2012 at 3:30 pm

    I came across this issue today during an interview for a quality control tech job. The employer seemed to only want a person that spoke Mandarin as well as have some English but it seemed that they wanted mainly a Mandarin speaking person. The explanation I was give was that many of the employees would also be speaking Mandarin. This company is from Hong Kong but they have 2 plants here in Toronto. I am not sure if I was discriminated against because I don’t speak Mandarin. I would figure all the reports would be written in English after all. The job isn’t in the public eye either. Funny an Asian get discriminated from an Asian company, I don’t see how Mandarin would be bona fide requirement for the job there if written portions would be need to be in English.

    I guess what I am asking is was I discriminated against because I don’t speak a preferred language ?

  3. Mike Reply

    February 24, 2016 at 5:02 pm

    I have been working for the Federal Government for almost 11 years. Ten of these years have been in the same department and position. I can not move up the ladder because I do not speak French. Over the years they have put bilingual (loosely said, as long a they spoke French, English didn’t matter. They spoke and wrote terrible English but that is ok) persons as my immediate supervisors. They eventually moved on. I have been able to be acting in the position for 4 months less one day. Again, because I don’t speak French I can’t have the position for more than 4 months. The government advertised jobs in either French, English or bilingual. I passed the test, passed the interview, then HR tells me that all management at any level must be bilingual and that there are no English positions. Meanwhile as I mentioned the advertisement says English. So, I sit in limbo unable to move up the ladder. I watch totally inexperienced people take my supervisor position because they speak French. Too add insult to injury, they expect me to train my new bosses.

  4. jackie Reply

    October 27, 2017 at 11:53 pm

    I was told by a Hospital in Ontario that they could not hire me because it was their policy to only hire bilingual (French and English) people for Ward Clerk jobs. That I would never be hired as one (a ward clerk) even though I am educated and experienced with excellent references in the field. Totally lost for words; I thought I lived in a predominantly English-speaking province??

    What a waste. Any advice would be greatly appreciated?

  5. Zak Reply

    March 27, 2019 at 8:09 pm

    Something needs to be done. I live in temiskaming shores ontario. We are on the boarder of quebec. I was not raised in a French family.

    Now as a result a majority of the jobs in town require you to be bilingual.

    They won’t even interview you if you are not bilingual.

    Not speaking French is the only legal form of discrimination in ontario. Putting english speaking people at risk of poverty.

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